Reprinted from Bench & Bar of Minnesota (February 1997)

Despite whatever progressive educational courses might be offered at local schools, the foundation for even the most futuristic learning depends on mastery of the old fashioned three R’s – the basics. The profession of law also has its ethical basics, its commandments, its primary tenets that must be learned and "relearned" over the years of practice. This article will address two of the basics of ethical practice:

Neglect and noncommunication go hand in hand. Together, they account for approximately 35 to 40 percent of all the disciplinary complaints received, year after year after year. Call it job security for the discipline system. An inquiry into what causes these problems reveals as many reasons as there are lawyers who fall into their trap. A review of some of the common problems, coupled with the client complaints that ensued, may assist practitioners to review and "relearn" the basics.

Inadequate office management policies/client education. Failure to pay attention to systems issues can cause significant client dissatisfaction, sometimes resulting in numerous client complaints being filed against one lawyer simultaneously. This is particularly true in high-volume practices such as workers compensation, bankruptcy, or personal injury law, where lawyers frequently rely on nonlawyer staff to handle much of the work flow.

The basis for many clients’ knowledge of the legal system is still television, be it O.J. or Law and Order. Unless the lawyer tells them what is reasonable to expect, clients expect the lawyer to set to work immediately and exclusively on their case and that the lawsuit will be over (and won) within whatever is the life equivalent of one episode. Thus, inadequate preliminary communication with a client at the time the lawyer is retained will almost inevitably result in client confusion and an increase in client calls later in the representation. Inadequate systems to ensure prompt responses to client calls and letters create nearly immediate client frustration. If the client caller is ignored on several occasions, a complaint is likely.

Saying yes when the answer should be no. Feeling sorry for a client is not a good basis on which to undertake representation. When the client tells you that one or two or three other lawyers have refused the case, alarms should be going off. Most lawyers can’t make miracles happen.

In addition, while most lawyers will not knowingly take on a client whose case is a sure loser, inadequate preliminary screening procedures for clients can result in more than a lawyer’s fair share of losers. What is the problem the client wants fixed? What are the client’s expectations from the lawyer and the legal system? Will the available legal remedies satisfy the client? These are only a few of the questions that need be answered before deciding to undertake the representation. Careful screening is even more important for the inexperienced lawyer, who may not have the knowledge to readily assess the situation. Certainly all lawyers feel pressure to bring in clients, but it is axiomatic that if the client has no case, undertaking the representation does not assist the client or the development of a successful practice.

Whether the case was a loser from the beginning, or it just did not develop as expected, once the lawyer has exhausted reasonable efforts at factual development and legal research and concludes that the evidence or legal theory or fault simply isn’t there, the client has to be informed. Sooner, not later. This type of bad news does not age well. All too frequently, a lawyer will not inform the client that the case is going nowhere until after it has aged significantly and with little or no contact with the lawyer. The result is a frustrated and angry client who will now blame the lawyer for the problems with the case and file a complaint, alleging, among other things, neglect and noncommunication. Let there be no misunderstanding, however: It is not a defense to a complaint of neglect and noncommunication that the case was worth little or nothing. Discipline likely still will ensue.